A Trump third term?

The progression of events in the United States is making it less and less likely that Donald Trump will preside over a fair election in 2028. It’s more probable that either he will have been removed from office by then, or that if he is still there then democracy will not have survived. But since it’s been the subject of a lot of recent discussion, it’s worth having a look at the prospect of such an election, and specifically of Trump running again.

Superficially, the law on the matter is clear. The 22nd amendment to the constitution, adopted in 1951, states that “No person shall be elected to the office of the President more than twice,” and it is not disputed that Trump was elected in both 2016 and 2024. (He claims, without foundation, to have also won the 2020 election, so on his own showing he was ineligible in 2024 as well, but this way madness lies.)

But eligibility is rarely simple. We studied the complexities of it last year, when the issue was the 14th amendment and its ban on candidates who have engaged in insurrection – a category that would appear to include Trump. But the supreme court unanimously held that this disqualification is not self-executing; a state electoral authority (or even a state court) cannot invoke it unilaterally. It requires federal action, and the conservative majority held that it requires actual legislation.

The court’s reasoning was framed entirely in terms of that particular amendment; there is nothing in it to suggest that the same conclusion would be reached about the 22nd amendment, or for that matter the provisions of article II, section 1, that the president must be a natural born citizen and at least 35 years of age. But by opening up a gap between the qualification and the right to enforce it, it raises questions about these provisions as well.

If a 33-year-old, for example, tries to run for president, whose job – if anyone’s – is it to stop them? Can a state do it, and if so can it be by administrative action, or does it have to go to court? Or is it up to congress to act? Or do you just wait for such a person to be elected, and then go to court to invalidate their election?

As readers probably know, the US has no federal electoral authority of the sort that in other countries would deal with questions like this. Interestingly enough though, even the Australian Electoral Commission admits that it has no power to rule on eligibility matters. It gives candidates a checklist to fill out, but as section 170A of the Commonwealth Electoral Act makes clear, its role is limited to seeing that the right boxes have been ticked: it “has no power to determine whether … an answer to a question … is incorrect, false or inadequate.”

As an example, you can check out the AEC’s statement last week on the candidacy of former senator and far-right conspiracy theorist Rod Culleton. Culleton has again nominated for the Senate even though as an undischarged bankrupt he is plainly ineligible. But the AEC, although it has taken it upon itself to point out that “he may have made a false declaration” and to refer the matter to the police, has no power to keep him off the ballot paper.

To return to the US though, let’s assume that the above questions can be satisfactorily answered and that some authority would keep Trump off the ballot in 2028. The argument is made that he could nonetheless become president again by running for vice-president to a dummy presidential candidate. The dummy, if elected, would then immediately resign and Trump would become president.

Could this work? It’s true that the 22nd amendment only refers to being “elected to the office”. But the twelfth amendment, which regulates the proceedings of the electoral college, states that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President.” That would seem to decide the matter, although an argument could be made that eligibility for the office is different from eligibility for election to the office.

In any case, it’s not only vice-presidents who can succeed. The provision has never been tested, but article II, section 1 gives congress the power to legislate for the case where both the presidency and vice-presidency are vacant, and it has done so by (most recently) the Presidential Succession Act of 1947. Under that act, the speaker of the House of Representatives is next in line, so Trump, the theory goes, could be appointed to that office and then become president on the resignation of a dummy president and vice-president.

The Presidential Succession Act includes the same restriction to those who are “eligible to the office of President,” but since it is just an ordinary piece of legislation, it could in theory be amended by a Trump-friendly congress. By this point, however, even a sympathetic supreme court might be losing patience with the multiple layers of subterfuge.

Alternatively Trump could simply try to amend the constitution – if not by the official process, which seems an obvious non-starter, then by reinterpretation by presidential fiat, as he has tried to do with the 14th amendment’s guarantee of birthright citizenship.* That attempt has been blocked by the courts, so we might have another look at it later as it works its way up towards the supreme court.

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* It’s not just Trump, either: Joe Biden, just before leaving office, also made an attempt to revive the Equal Rights Amendment by presidential order, although he did not actually claim the authority to decide the question (on which the authorities are very much against him).